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Report No. 42

2.21. Amendment of section 19.-

Thus, both in England and in India, committing Magistrates enjoy adequate protection so far as civil liability is concerned. It appears to be unreasonable and illogical to deny them protection from criminal prosecutions in respect of those proceedings where they do not have to pass definitive judgments.1 We, therefore, recommend that all Magistrates should be brought within the definition of "Judge" in Section 19. None of the illustrations is necessary, and they should all be omitted. Section 19 may be re-drafted as follows.-

"19. Judge.- 'Judge' means any person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment, which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment and includes a Magistrate".

1. When committal proceedings are abolished as recommended by the Law Commission in its 41st Report, Judicial Magistrates will be functioning as "Judges" almost all the time.

2.22. Section 2.-"court of justice".-

Section 20 defines a court of justice as meaning a judge or body of judges empowered by law to act judicially when such judge or body of judges is acting judicially. It has been suggested that the wider definition of court given in section 3 of the Evidence Act should be adopted in the Penal Code. For the purposes of the Evidence Act, "court" includes all judges and magistrates, and all persons, except arbitrators, legally authorised to take evidence. The emphasis in the Penal Code is on the power to give definitive judgments, whereas in the Evidence Act, it is on the authority to take evidence. Although some quasi-judicial tribunals having legal authority to take evidence may not be courts of justice under the Indian Penal Code, we do not think it is necessary that they should be brought within the definition of that expression.

The definition is, however, unnecessarily lengthy. The word "judge" having been clearly and comprehensively defined in section 19, there seems to be no point in repeating in section 20 the idea that the judge or body of judges should have been empowered by law to act judicially, alone or as a body, as the case may be. It is sufficient to indicate in the definition that it is only when a judge . or body of judges is acting judicially that he or it is to be regarded as a court of justice for the purposes of the Code. Thus an Executive Magistrate, while functioning judicially under the Code of Criminal Procedure, will be a court of justice but not when he is performing an executive or administrative function under that Code or some other law. We propose that the definition of "court of justice" may be simplified to read, "the words 'court of justice' denote a judge or body of judges when acting judicially".

2.23. Section 21 "public servant.-importance of definition.-
2.23. Section 21 "public servant.-

The definition of public servant in section 21 is important because there are numerous offences under the Code where the distinction between public servants and other becomes material. These offences may be broadly classified as follows.-

(i) offences which can be committed only by a public servant;

(ii) offences which are aggravated when committed by a public servant;

(iii) offences which can be committed only against a public servant;

(iv) offences which are aggravated when committed against a public servant; and

(v) offences committed in relation to public servants or their authority or connected with them in one way or another.

The Civil Procedure Code contains a definition of "public officer" which is similar to, but not exactly the same as, the definition of "public servant" in the Penal Code. We note that no material changes have been proposed in the former definition by the Commission in its Report on that Code.1 When section 80 of the Civil Procedure Code is repealed as recommended by the Commission, the definition of public officer will lose most of its significance. For purposes of the Penal Code, however, the distinction between public servants and others will continue to be of practical importance.

1. 27th Report.

2.24. Rearrangement of clauses and shortening suggested.-

The elaborate enumeration of various categories of public servants in section 21 is primarily based on the functions discharged by the public servant concerned. There is, however, considerable overlapping, particularly after the recasting of clause twelfth by the amending Acts of 1958 and 1964, and some of the clauses require drastic revision. Each of the clauses will now be considered separately.

2.25. Clause second omitted.-

Clause second, which relates to commissioned officers in the Military, Naval or Air Force of India, may be omitted, as these officers are included in the twelfth clause.

2.26. Clause third.-

Clause third relates to Judges, including persons empowered to perform adjudicatory functions. The word "Judge" gives colour to the added words referring to adjudicatory functions. A doubt may arise as to whether an arbitrator is a "judge" but in view of the express mention of an arbitrator in clause sixth, this clause may not include an arbitrator. No change need be made in this clause. Any doubt as to whether a "tribunal" is included in this clause has been clarified by the judgments of the Supreme Court in the cases cited below1 while construing the expression "tribunal" occurring in Articles 136 and 227 of the Constitution. Hence no amendment to this clause is necessary.

1. Cf. Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 188 (189, 190, 196): 1950 SCR 459; Durgashankar v. Raghuraj, AIR 1954 SC 520: 1965 SCR 267; Harinagar Sugar Mills v. Shyam Sunder, AIR 1961 SC 1669 (1676), para. 16: (1962) 2 SCR 339; Associated Cement Co. v. P.N. Sharma, AIR 1965 SC 1595.

2.27. Clause fourth.-

Clause fourth relates to officers of a Court of Justice performing the specified functions. In part, it overlaps clause twelfth. In our view, it should be restricted to "every person specially authorised by the Court to perform any duties in connection with the administration of justice1, including a liquidator, receiver or commissioner."

Full-time officers of a Court of Justice are included in clause twelfth.

1. Other altematives suggested were

(i) "functions of the Court",

(ii) "any matter pending before the Court".

2.28. Clause fifth.-

Clause fifth may be omitted. Jurors and assessors no longer exist in the criminal procedure after the abolition of trial by jury and with the aid of assessors.

2.29. Clause sixth.- No change is needed in clause sixth.

2.30. Clauses seventh, eighth, ninth and tenth combined and simplified.-

Clause seventh may be useful for convict-warders etc., who are not Government servants. We, therefore, propose to retain its substance, but in a different form in more general language.

Clause eighth relates to officers "of the Government whose duty is to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety or convenience." Case-law1 relating to prosecutors, police patels, officers of the Society for Prevention of Cruelty to Animals, etc., shows its utility. We propose to retain it in substance, but in a different form. We may add that the words "of Government" are unduly restrictive in this clause.

The test should be the nature of the duty, and not whether the office is under Government. We also propose to retain clauses ninth and tenth (which relate to persons looking after pecuniary and proprietary interests of the State) in substance. It seems, to us, that, to cover the matters mentioned in clauses seventh, eighth, ninth and tenth, a new clause as follows should be substituted:

"any person who holds an office by virtue of which he is authorised or required by law to perform any public duty."

It may be specially mentioned with reference to the above clause that the "public duty" must be one imposed by law. Such a requirement will prevent undue widening of the scope of the expression "public servant".

1. (a) Butto Krishno Das, 1878 ILR 3 Cal 497.

(b) Appaji, 1896 ILR 21 Born 517.

(c) Nataraja, 1922 ILR 46 Mad 90.

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